Opinion
(Spring Term, 1804.)
If a defendant be acquitted in the county court and the State appeals, a bond need not be given; and it is sufficient if the appeal be filed in the Superior Court at any time before State's day.
Indictment for assault and battery. The defendant was indicted in the County Court of Rowan, and acquitted, and judgment in favor of the defendant; from which the attorney for the State appealed (633) to the Superior Court of Salisbury District. The cause came on for trial at September Term, 1803, when the counsel for the defendant moved to have the same dismissed, for two causes: (1st.) That no bond had been given by the State, or prosecutor, to prosecute said appeal with effect, or, in case of failure, to pay such costs as might be awarded, according to an act of the General Assembly respecting appeals.2d That the appeal had not been brought up by the party praying it within the time prescribed by the aforesaid act of Assembly.
The court suspended judgment upon this motion, and directed a jury to be impaneled to try the issue. Upon the trial it appeared that the prosecutor had given the defendant great provocation and offense, and that the assault and battery which the defendant committed was very trifling, but not justified in law. The defendant was convicted.
The court reserved the consideration of the foregoing motion, and referred the same to this Court; and if the Court should be of opinion that the said appeal ought not to be dismissed, then that they give judgment against the defendant, upon the conviction aforesaid, and the affidavits accompanying the case.
A bond, in case of an appeal on the part of the State, is not necessary. Recognizance is sufficient; and it is sufficient that such appeal and recognizance be filed in court at any time before State's day.
Judgment that defendant be fined two pounds, and costs.
Cited: State v. Ostwalt, 118 N.C. 1220; State v. Savery, 126 N.C. 1087; State v. Cole, 132 N.C. 1090; State v. Ford, 168 N.C. 166.
NOTE. — The State is not entitled to an appeal from the county to the Superior Court, upon the acquittal of a defendant in a criminal prosecution. State v. Jones, 5 N.C. 257.
(634)